25 FLRA No. 79
FEDERAL UNION OF SCIENTISTS AND
ENGINEERS, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R1-144 SEIU, AFL-CIO
Union
and
U.S. DEPARTMENT OF THE NAVY,
NAVAL UNDERWATER SYSTEMS CENTER
Agency
Case No.0-NG-1285
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of three proposals. /1/ We find that Proposals 1, 3 and
the second sentence of Proposal 2 are nonnegotiable. We find that,
except for the second sentence, Proposal 2 is negotiable.
II. Proposal 1
In the event of a reduction-in-force, the competitive area
shall be comprised of all positions assigned to NUSC, Newport
Laboratory, Newport, RI.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because the
competitive area proposed would encompass nonbargaining unit positions
and, consequently, the proposal would determine conditions of employment
of nonbargaining unit employees. Additionally, it asserts that the
proposal conflicts with its management rights to assign, layoff, retain
and remove employees and to reduce them in grade and pay. The Union
states only that the proposal "stands as read."
B. Analysis and Conclusion
The proposal as worded would prescribe a competitive area for
nonbargaining unit positions and employees. It is, therefore, to the
same effect as the proposal which the Authority found nonnegotiable in
American Federation of Government Employees, Local 32, AFL-CIO and
Office of Personnel Management, 22 FLRA No. 49 (1986) appeal filed sub
nom. American Federation of Government Employees, Local 32, AFL-CIO v.
FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). For the reasons expressed
in that decision, we find that this proposal is nonnegotiable. In view
of this conclusion, we find it unnecessary to address the Agency's
additional contentions as to the negotiability of this proposal.
III. Proposal 2
Employees impacted by the reduction-in-force who appeal the
action to the MSPB or arbitration shall have a stay of the action
pending settlement of the related appeals. Any reduction-in-force
will at the election of the employee be appealable to the MSPB or
grievance procedure, but not both. Prior to first step of the
grievance procedure, the Union shall be consulted.
A. Positions of the Parties
The Agency asserts that the first sentence of this proposal is
nonnegotiable because it conflicts with section 7106(a)(2)(A) of the
Statute. The second sentence is nonnegotiable because it conflicts with
section 7121(a)(1). The Agency makes no claim that the remaining
portion of this proposal is nonnegotiable. The Union offers no comment
on the merits of the proposal.
B. Analysis and Conclusion
As to the first sentence of the proposal the Agency relies upon
decisions of the Merit Systems Protection Board (MSPB) and argues that
the MSPB will not entertain appeals relating to Reduction-In-Force (RIF)
actions prior to the effective date -- i.e. date of execution -- of the
action. By staying the execution of the RIF until completion of an
appeal process which cannot be undertaken until execution, the Agency
argues that the proposal would effectively prevent the Agency from
carrying out RIF actions. This interpretation of MSPB's practices and
procedures has been rejected by the U.S. Court of Appeals for the D.C.
Circuit. National Treasury Employees Union v. Federal Labor Relations
Authority, 712 F.2d 669 (D.C. Cir. 1983). The Authority has
subsequently adopted and followed the Court's interpretation. See,
National Federation of Federal Employees, Local 1900 and Department of
Housing and Urban Development, 15 FLRA 465 (1984). Based on the reasons
set forth in NTEU v. FLRA, 712 F.2d 669, and Housing and Urban
Development, 15 FLRA 465, we reject the Agency's arguments as to the
first sentence of this proposal and find that it is within the duty to
bargain.
The second sentence would provide employees a choice of appealing any
RIF action to the MSPB or through the negotiated grievance procedure.
Section 7121(a) of the Statute provides that, except for those limited
matters set out in section 7121(d) and (e), the negotiated grievance
procedure shall be the exclusive procedure for resolving all matters
which fall within its coverage. The limited exceptions to the
exclusivity requirement, which are set out in section 7121(d) and (e),
include claims that an employee has been affected by a prohibited
personnel practice under section 2302(b)(1) and matters covered under 5
U.S.C. Sections 4303 and 7512. If these matters are also within the
coverage of a negotiated grievance procedure, employees have a choice of
raising the matter under either the negotiated procedure or the relevant
statutory or appellate procedure, but not both.
Since 5 U.S.C. Section 4303 concerns performance-based actions and 5
U.S.C. Section 7512 expressly excludes RIF actions from its coverage,
the only exception to the 7121(a) exclusivity requirement relevant to
RIF actions is the one relating to prohibited personnel practices. See
Johnson v. Department of Labor, 26 MSPR 447 (1985). Thus, where RIF
actions are within the coverage of the negotiated grievance procedure,
an aggrieved employee would be excepted from the exclusivity requirement
of section 7121(a) only where an allegation was made that he/she had
been affected by a prohibited personnel practice. The second sentence
of the proposal conflicts with section 7121(a) because it would provide
an exception to the exclusivity requirement with respect to any RIF
action and without regard to whether a prohibited personnel practice was
raised. We find that this portion of this proposal is nonnegotiable.
See American Federation of Government Employees, Local 1799 and
Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA No.
62 (1986) (Provision 1).
The third sentence of the proposal requires consultation prior to the
first step of the grievance procedure. The Agency does not advert to
any reasons why this sentence of the proposal is nonnegotiable and none
are otherwise apparent.
Based on the above, we find that the second sentence of this proposal
is not within the duty to bargain; the remainder of the proposal is
negotiable.
IV. Proposal 3
In order to minimize the impact of RIF on full-time unit
members, the employer agrees to terminate all temporary,
part-time, reemployed annuitants, stay-in-schoolers, and summer
students, unless there are persu